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January 13, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 88 BOP facilities and 12 RRCs

Currently positive-testing inmates: 167 (unchanged) Currently positive-testing staff: 254 (unchanged) Recovered inmates currently in the BOP: 46,804 (down from 46,942) Recovered staff: 14,801 (unchanged)


Institutions with the largest number of currently positive-testing inmates:

Brooklyn MDC: 14 (unchanged)

Loretto FCI:10 (down from 12)

Memphis FCI: 10 (unchanged)


Institutions with the largest number of currently positive-testing staff:

Central Office HQ: 60 (unchanged)

Rochester FMC: 16 (unchanged)

Brooklyn MDC: 13 unchanged)


System-wide testing results: Presently, BOP has 145,307 federal inmates in BOP-managed institutions and 13,163 in community-based facilities. Today's stats: Completed tests: 128,662 (unchanged) Positive tests: 55,310 (unchanged)


Total vaccine doses administered: 344,965 (unchanged)


News Note: New Guidelines proposed for compassionate release...


Yesterday, the U.S. Sentencing Commission published, for public comment, proposed Guideline amendments on several topics, including revisions to implement the changes to compassionate release made by the First Step Act of 2018. The proposed amendments may be viewed here. The Commission's proposed revisions to USSG § 1B1.13 are wide-ranging and, for the most part, reflect the majority view of the Circuit Courts that broadly interpret a district court's authority to grant compassionate release. The Commission's summary of the proposed revisions explains:


The proposed amendment would implement the First Step Act’s relevant provisions by amending §1B1.13 and its accompanying commentary. Specifically, the proposed amendment would revise the policy statement to reflect that 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act, authorizes a defendant to a file a motion seeking a sentence reduction. The proposed amendment would also revise the list of “extraordinary and compelling reasons” in §1B1.13 in several ways.


First, the proposed amendment would move the list of extraordinary and compelling reasons from the Commentary to the guideline itself as a new subsection (b). The new subsection (b) would set forth the same three categories of extraordinary and compelling reasons currently found in Application Note 1(A) through (C) (with the revisions described below), add two new categories, and revise the “Other Reasons” category currently found in Application Note 1(D). New subsection (b) would also provide that extraordinary and compelling reasons exist under any of the circumstances, or a combination thereof, described in such categories.


Second, the proposed amendment would add two new subcategories to the “Medical Condition of the Defendant” category at new subsection (b)(1). The first new subcategory is for a defendant suffering from a medical condition that requires long-term or specialized medical care, without which the defendant is at risk of serious deterioration in health or death, that is not being provided in a timely or adequate manner. The other new subcategory is for a defendant who presents the following circumstances: (1) the defendant is housed at a correctional facility affected or at risk of being affected by an ongoing outbreak of infectious disease or an ongoing public health emergency declared by the appropriate governmental authority; (2) the defendant is at increased risk of suffering severe medical complications or death as a result of exposure to the ongoing outbreak of infectious disease or ongoing public health emergency; and (3) such risk cannot be mitigated in a timely or adequate manner.


Third, the proposed amendment would modify the “Family Circumstances” category at new subsection (b)(3) in three ways. First, the proposed amendment would revise the current subcategory relating to the death or incapacitation of the caregiver of a defendant’s minor child by making it also applicable to a defendant’s child who is 18 years of age or older and 3 incapable of self-care because of a mental or physical disability or a medical condition. Second, the proposed amendment would add a new subcategory to the “Family Circumstances” category for cases where a defendant’s parent is incapacitated and the defendant would be the only available caregiver for the parent. Third, the proposed amendment brackets the possibility of adding a more general subcategory applicable if the defendant presents circumstances similar to those listed in the other subcategories of “Family Circumstances” involving any other immediate family member or an individual whose relationship with the defendant is similar in kind to that of an immediate family member.


Fourth, the proposed amendment brackets the possibility of adding two new categories: (1) Victim of Assault (“The defendant was a victim of sexual assault or physical abuse resulting in serious bodily injury committed by a correctional officer or other employee or contractor of the Bureau of Prisons while in custody.”); and (2) Changes in Law (“The defendant is serving a sentence that is inequitable in light of changes in the law.”).


Fifth, the proposed amendment would revise the provision currently found in Application Note 1(D) of §1B1.13. Three options are provided. All three options would redesignate this category as “Other Circumstances” and expand the scope of the category to apply to all motions filed under 18 U.S.C. § 3582(c)(1)(A), regardless of whether such motion is filed by the Director of the BOP or the defendant. Option 1 would provide that this category of extraordinary and compelling reasons applies in cases where a defendant presents any other circumstance or a combination of circumstances similar in nature and consequence to any of the circumstances described in new subsection (b)(1) through [(3)][(4)][(5)] of §1B1.13. Option 2 would provide that that this category applies if, as a result of changes in the defendant’s circumstances [or intervening events that occurred after the defendant’s sentence was imposed], it would be inequitable to continue the defendant’s imprisonment or require the defendant to serve the full length of the sentence. Option 3 would track the language in current Application Note 1(D) of §1B1.13 and apply if the defendant presents an extraordinary and compelling reason other than, or in combination with, the circumstances described in paragraphs (1) through [(3)][(4)][(5)].


Finally, the proposed amendment would move current Application Note 3 (stating that, pursuant to 28 U.S.C. § 994(t), rehabilitation of a defendant is not, by itself, an extraordinary and compelling reason for purposes of §1B1.13) into the guideline as a new subsection (c). In addition, as conforming changes, the proposed amendment would delete application notes 2 (concerning the foreseeability of extraordinary and compelling reasons), 4 (concerning a motion by the Director of the Bureau of Prisons), and 5 (concerning application of subdivision 3), and make a minor technical change to the Background commentary.



Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today, the BOP announced the death, on December 15, 2022, of FCI Terminal Island inmate Wilmer Caronio, 59, raising the total number of inmate COVID-related deaths to 312. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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